On August 23, 2023, the Ninth Circuit agreed to review a federal trial court’s certification order in an unwieldy class action. The case arose from a civil-RICO suit by a third-party payer and others to recover treble their prescription costs for Actos, an FDA-approved diabetes drug. As WLF’s amicus brief explained, the plaintiffs’ key evidentiary problem was how to distinguish Actos prescriptions that would have been written despite an increased-risk disclosure from those that would not have been written because of that disclosure. But making that distinction requires an individualized inquiry into the medical factors relevant to each patient’s prescription. Class certification is never appropriate where, as here, individualized questions will predominate over common ones. WLF’s amicus brief was prepared with generous pro bono assistance from Charles S. Dameron and Joseph E. Begun of Latham & Watkins LLP.


Ninth Circuit 23(f) Petition amicus brief

Supreme Court cert-stage brief